Bankstown City Council v Sfinarolakis [2011] NSWLEC 179

Land and Environment Court New South Wales

Medium Neutral Citation: Bankstown City Council v Sfinarolakis [2011] NSWLEC 179 Hearing dates: 7 October 2011 Decision date: 07 October 2011 Jurisdiction: Class 4 Before: Pepper J Decision: The Court grants the relief sought by the consent orders. Catchwords: CIVIL ENFORCEMENT: consent orders - power of the Court to make declarations by consent - examination of the evidence relied upon in support of the relief sought - orders made Legislation Cited: Environmental Planning and Assessment Act 1979 ss 96, 121B Cases Cited: Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822

Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; (2011) 279 ALR 609

Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 Category: Principal judgment Parties: Bankstown City Council (Applicant) Ms Helen Sfinarolakis (First Respondent) Mr Keith Hadjigeorgiou (Second Respondent) Representation: Ms Peta Hudson (Solicitor) (Applicant) Ms Helen Sfinarolakis (Litigant in Person) (First Respondent) Mr Keith Hadjigeorgiou (Litigant in Person) (Second Respondent) Marsdens Law Group (Applicant) Ms Helen Sfinarolakis (Litigant in Person) (First Respondent) Mr Keith Hadjigeorgiou (Litigant in Person) (Second Respondent) File Number(s): 40727 of 2011

Ex tempore Judgment

The Court Cannot Grant Declaratory Relief by Consent Without Having Regard to the Evidence 1This is an application by consent of both parties seeking, first, a declaration that the first and second respondent, Ms Helen Sfinarolakis and Mr Keith Hadjigeorgiou, also known as Mr Keith Hatzis ("the respondents"), have carried out unlawful development on land known as Lot 4 in DP 615607, 792A Henry Lawson Drive, Picnic Point ("the land"), otherwise than in accordance with development consent DA 368/1999 dated 12 October 1999 ("the development consent") as modified by DA 36/1999/2 dated 21 December 2006 ("the modified development consent") contrary to the provisions of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 2Second, relief is sought by way of an order that the respondents carry out works set out in paragraphs (a)-(g) of order 2 of the consent orders handed up to the Court. Finally, Bankstown City Council ("the council") seeks an order that the respondents pay the council's costs in the proceedings fixed in the sum of $7,000 by 21 October 2011. 3Because the council seeks declaratory relief in the proceedings the Court must have regard to the evidence relied upon by it in order to satisfy itself that it is appropriate to make the declaration. The Court cannot, absent this satisfaction, grant declaratory relief by consent ( Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 at [2]. But see more recently the decision of Pembroke J in Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822 at [9]). 4This gives rise to a question as to whether or not declaratory relief can be granted absent a proper contradictor, and if not, whether a party that consents to a declaration being made against it can serve as a proper contradictor (see Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; (2011) 279 ALR 609 at [41]-[43]). Since these questions have not been raised by the parties and no argument has been heard in respect of them, it is neither necessary nor appropriate for the Court to determine them, however persuasive the reasoning in MSY may be. 5In support of its application for relief, the council relied upon an affidavit of Mr Glen Champion, sworn 16 August 2011, together with exhibits. Mr Champion is a building surveyor in the employment of the council.